Oakland Education Association (Freeman) (PERB 1057E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DR. 	WELBORN G. 	FREEMAN, 	JR.,
Charging 	Party,
v.
OAKLAND EDUCATION ASSOCIATION,
Respondent.
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) 	Case No. 	SF-CO-454
PERB Decision No. 	1057
September 	14, 	1994
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Appearance: 	Dr. Welborn G. 	Freeman, 	on his own behalf.
Before Caffrey, 	Garcia, 	and Johnson, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before 	the Public Employment
Relations Board 	(Board) 	on appeal by Dr. 	Welborn G. 	Freeman, 	Jr.
(Freeman) 	of a Board agent's dismissal 	(attached hereto) 	of his
unfair practice 	charge. 	In the 	charge, 	Freeman alleged that 	the
Oakland Education Association 	(OEA) 	violated section 3543.6 	of
the Educational 	Employment Relations Act 	(EERA or Act)1 by
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.6 provides, 	in pertinent
part:
It 	shall be unlawful 	for an employee
organization to:
(b) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate 	or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by 	this 	chapter.
(c) 	Refuse 	or fail 	to meet 	and negotiate 	in
good 	faith with a public 	school 	employer 	of
any of 	the 	employees 	of which it 	is 	the
exclusive 	representative.
e

discriminating 	and 	taking 	reprisal 	actions 	against 	Freeman
because 	of 	his 	exercise 	of 	rights 	protected by 	the Act.2 The
Board agent 	dismissed his 	charge 	and 	refused 	to 	issue 	a 	complaint
on the grounds 	that 	some 	of 	Freeman's 	allegations 	were untimely
filed; 	for the 	remaining 	timely filed allegations, 	the Board
agent 	found 	that 	Freeman had 	failed 	to 	state a prima 	facie 	case
of 	a violation of 	EERA section 	3543.6.
The 	Board has 	reviewed applicable 	statutes 	and 	case 	law, 	the
warning and dismissal 	letters, 	the 	original 	and amended charges,
Freeman's appeal3 and the entire 	record in this 	case. 	The Board
finds 	the 	Board agent's 	dismissal 	to be 	free of prejudicial 	error
and adopts 	it 	as 	the 	decision of 	the Board 	itself.
DISCUSSION
On appeal, 	Freeman challenges 	the Board agent's dismissal 	of
his 	allegations as untimely. 	He argues 	that 	the 	statute 	of
limitations 	did not begin to 	run on any of 	his 	allegations 	until
October 	1993,4 based on a 	"continuing 	chain of 	events" 	theory
and 	citing 	the 	proposed decision 	in Jefferson 	School 	District
2We 	take 	jurisdiction because: 	(1) 	Freeman is an employee-
and OEA is an employe---------e organization as defined 	in EERA; 	(2) 	some
-	of 	Freeman's 	allegations 	were 	timely 	filed as 	unfair practice
charges; 	and 	(3) 	we 	found no grievance agreement between Freeman
and OEA to 	delay 	PERB 	jurisdiction under 	EERA 	section
3541.5(a)(2). 	Member Johnson concurs 	in the result 	that 	PERB has
jurisdiction 	to hear 	this 	matter and excepts 	to Member Garcia's
analysis 	of 	how and 	in what manner 	PERB 	obtained 	jurisdiction.
3No 	response 	to 	the appeal 	was 	filed by OEA.
4The 	original 	unfair practice 	charge was 	filed November 	19,
1993; 	an amended unfair practice 	charge was 	filed February 	15,
1994.
22

(1980) 	PERB Decision No. 	133 	(Jefferson).5 The Jefferson case
did not 	involve 	the 	statute 	of 	limitations 	and 	is 	inapplicable.
Even if 	all 	allegations were 	timely, 	the 	entire 	charge was 	still
properly dismissed 	for 	failure 	to 	state 	a prima 	facie 	case 	on 	the
merits.
Freeman's 	appeal 	does 	not 	overcome 	the 	Board agent's
conclusion 	that 	he 	had not 	stated a prima 	facie 	case 	for any
charges. 	Rather, 	on appeal, 	he raises 	for the 	first time
numerous 	new allegations6 of 	reprisal 	without addressing 	the
weaknesses 	identified in the warning 	letter. 	Freeman argues 	that
a prima 	facie 	case 	exists 	based on 	the 	new allegations 	and new
evidence, 	without 	specifying when the events 	occurred.
PERB Regulation 32635 	states,7 in pertinent part:
5We 	note 	that 	the version of 	the 	case 	from which 	Freeman
cites was appealed to the Board itself. 	On appeal, 	the Board
affirmed 	the hearing 	officer's 	finding 	"that 	the Association did
not 	insist 	to 	impasse 	on negotiating matters 	outside 	the 	scope 	of
representation." 	(Id. 	at p. 	64.)
6Those new allegations 	included claims 	that, 	among 	other
things, 	OEA violated its 	own procedure 	for running 	Faculty
Advisory 	Committee 	elections; 	that 	OEA violated 	the District's
Affirmative Action policy; 	that 	OEA 	"recruited" 	employees 	to make
false allegations 	of 	sexual 	harrassment against 	Freeman; 	that 	OEA
intentionally 	lost 	grievances 	it 	handled 	for Freeman, 	in reprisal
for his 	exercise of 	"legal 	rights," 	such as membership 	in a 	rival
union; 	that 	OEA and 	the District 	"conspired to 	commit 	fraud" 	by
consolidating his position; 	and that 	OEA failed to 	enforce
unspecified violations 	of 	the 	contract 	between OEA and 	the
District.
7PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
W
	3

(b) 	Unless good cause is shown, 	a charging
party may not 	present 	on appeal 	new charge
allegations 	or new supporting 	evidence.
(Emphasis 	added.)
Interpreting this 	regulation, 	PERB has been reluctant 	to
find 	that 	good 	cause 	existed 	to allow a party 	to 	raise 	new
allegations 	or new evidence 	for the 	first 	time 	on appeal.8 The
reason 	for 	this 	reluctance 	is 	stated 	in South San Francisco:
The purpose of 	PERB Regulation 32635(b) 	is 	to
require 	the 	charging party 	to present 	its
allegations 	and 	supporting 	evidence 	to 	the
Board agent 	in the 	first 	instance, 	so that
the Board agent 	can 	fully 	investigate 	the
charge prior to deciding whether 	to 	issue 	a
complaint 	or dismiss 	the 	case.
As 	the Board noted 	in another 	case, 	when a party has 	the
opportunity 	to 	cure 	defects 	in his prima 	facie 	case at 	earlier
stages and does 	not do so, 	the Board is 	reluctant 	to allow him to
raise 	such 	facts 	or evidence 	later.9 The warning 	letter 	to
Freeman stated 	that 	if 	there were any 	factual 	inaccuracies 	in the
warning 	letter 	or any additional 	facts 	which would 	correct 	the
deficiencies 	explained therein, 	he 	should amend 	the 	charge
accordingly. 	While 	the 	lack of 	responsiveness by OEA to
Freeman's 	inquiries 	could imply an improper motive, 	it 	is
8See, 	e.g., 	South San Francisco Unified School 	District
(1990) 	PERB Decision No. 	830 	(South San Francisco); 	Association
of California State Attorneys 	(Winston) 	(1992) 	PERB Decision
No. 	931-S; 	California School Employees Association 	(Watts) 	(1993)
PERB Decision No. 	1008; 	California State Employees Association
(Hackett) 	(1993) 	PERB Decision No. 	1012-S; 	California School
Employees Association 	(LaFountain) 	(1992) 	PERB Decision No. 	925.
In all 	the above 	cases, 	the Board found no good cause 	existed
because 	no 	explanation was 	offered.
9See LaFountain. 	supra.- -
44

Freeman's burden to make 	the 	case. 	Freeman did not 	cure 	those
deficiencies 	in his 	amended charge, 	and he has 	not 	offered any
reason why 	the 	Board 	should 	consider 	the 	new allegations 	on
appeal 	now.
In conclusion, 	we 	find that 	Freeman has not 	demonstrated
good 	cause 	for 	the 	Board 	to 	consider 	the 	new allegations
contained in his appeal. 	The 	remainder of 	Freeman's appeal 	is an
attempt 	to 	overcome 	deficiencies 	in 	timeliness 	and 	establish a
prima facie case. 	The effort 	is 	insufficient. 	Therefore, 	we
affirm the 	Board agent's 	dismissal 	of 	Freeman's 	unfair practice
charge.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CO-454 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Member Johnson 	joined 	in 	this 	Decision.
Member Caffrey's 	concurrence begins 	on page 	6.
55

CAFFREY, 	Member, 	concurring: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on appeal 	by
Dr. Welborn G. 	Freeman, 	Jr. 	(Freeman) 	of a Board agent's
dismissal 	of his unfair practice charge. 	In his 	charge, 	Freeman
alleged 	that 	the Oakland Education Association 	(OEA) 	violated
section 3543.6(b) 	of 	the Educational 	Employment Relations Act
(EERA) 	by 	failing 	to 	fairly represent 	him, 	and by 	retaliating and
discriminating against 	him because 	of 	his 	exercise 	of 	rights
protected 	by 	EERA.
I 	have 	reviewed 	the entire 	record 	in this 	case 	and 	I 	find
the Board agent's 	dismissal 	to be 	free 	of prejudicial 	error.
Therefore, 	I 	concur in adopting 	it as 	the decision of 	the Board
itself.
I 	write 	separately 	to 	expressly 	reject Member Garcia's
statement 	regarding Board jurisdiction 	in this 	case, 	which
appears 	in footnote 2.
EERA section 3541.5(a)(2) 	provides, 	in pertinent part, 	that
PERB shall not:
Issue 	a 	complaint 	against 	conduct 	also
prohibited by 	the provisions 	of 	the 	agreement
between 	the parties 	until 	the 	grievance
machinery of the agreement, 	if 	it exists and
covers 	the matter at 	issue, 	has been
exhausted, 	either by settlement 	or binding
arbitration.
The 	Board has 	interpreted this 	section as 	denying 	it
jurisdiction 	in 	cases 	in which the 	complained of 	conduct 	is
arguably prohibited by provisions 	of 	a 	collective 	bargaining
agreement 	(CBA) 	in effect between an employer and an employee
66

organization, 	when 	the 	CBA provides 	for a grievance procedure
covering 	the 	conduct 	and 	culminating 	in binding 	arbitration.
(Lake Elsinore School District 	(1987) 	PERB Decision No. 	646.)
The 	Board has 	not 	interpreted 	the 	EERA section 	3541(a)(2)
reference 	to 	"the agreement between the parties" 	to 	include an
agreement between an employee 	organization and an employee. 	Yet,
- -
in 	footnote 	2, 	Member Garcia states 	that 	there 	is 	"no grievance
agreement 	between 	Freeman 	and 	OEA to 	delay 	PERB 	jurisdiction
under EERA section 3541.5(a)(2)" 	in this 	case.
Member Garcia 	offers 	no 	explanation and 	cites 	no 	authority
for this novel 	interpretation, 	which 	is 	inconsistent with PERB
precedent. 	I 	reject 	this unsubstantiated view.
77

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
February 23, 	1994
Dr. Welborn G. Freeman, Jr.
Re: 	DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE
COMPLAINT
Dr. Welborn G. Freeman. Jr. v. Oakland Education Association
Unfair Practice Charge No. 	SF-CO-454
Dear Mr. 	Freeman:
The above-referenced unfair practice charge, 	filed on November
19, 	1993, 	alleges that the Oakland Education Association
(Association) 	failed to fairly represent him with regard to a
transfer and the elimination of an annuity. 	This conduct is
alleged to violate Government Code section 3543.6 	of 	the
Educational Employment Relations Act 	(EERA).
I indicated to you, 	in my attached letter dated January 28, 	1994,
that 	the above-referenced charge did not 	state a prima facie
case. 	You were advised that, 	if there were any factual
inaccuracies or additional 	facts which would correct the
deficiencies explained in that letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to
February 9, 	1994, 	the charge would be dismissed. 	You were
granted an extension of time to file an amended charge.
On February 15, 	1994, 	an amended charge was filed. 	The amended
charge contains new allegations in substance as follows. 	The
amended charge alleges that Mr. 	Freeman is an African-American.
It further alleges that Freeman elected not to join the
Association and that he was known by the Association to have
participated in a rival employee organization. 	The amended
charge asserts 	that his grievance has remained on the third level
since 1989 because of his decision not to join the Association
and his membership in a rival organization.
Although the amended charge asserts the theory that the
Association failed to pursue a grievance because of 	Freeman's
protected activity of electing not 	to join the Association and
participating in a rival organization, 	this new claim appears to
be untimely. 	Freeman knew or should have known that 	the
Association was 	failing to process his grievance when it 	failed
to return his telephone calls or reply to his correspondence.

Dismissal, etc.
SF-CO-454
February 23, 	1994
Page 2
Correspondence attached to the charge 	indicates 	that these events
occurred in August 	1991 and September 1992. 	Only violations
discovered within six months of the filing of the charge, 	or
after May 19, 	1993, may be considered.
Therefore, 	I am dismissing the charge based on the facts and
reasons contained in my January 28, 	1994 letter as well as those
stated above.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal of the charge by filing
an appeal to the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal must be actually received by the Board itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 shall apply.
The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 95814
If you file a timely appeal of the refusal to issue a complaint,
any other party may file with the Board an original 	and 	five
copies of a statement in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All documents authorized to be filed herein must also be 	"served"
upon all parties to the proceeding, 	and a "proof of service"
must accompany each copy of a document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 for the required contents and a sample form.) 	The
document will be 	considered properly 	"served" 	when personally
delivered or deposited in the first-class mail, 	postage paid and
properly addressed.
Extension of Time
A request 	for an extension of time, 	in which to file a document
with the Board itself, 	must be in writing and filed with the
Board at the previously noted address. 	A request 	for an
(,

( .
Dismissal, etc.
SF-CO-454
February 23, 	1994
Page 3
extension must be filed at least three 	(3) 	calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof 	of 	service of 	the request upon each
party. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
Final Date
If no appeal is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General 	Counsel
By DON-N GINOZA	GINOZA"
Regional Attorney
Attachment
cc: 	Ramon E. Romero
.. ..

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
January 28, 	1994
Dr. Welborn G. Freeman, Jr.
Re: 	WARNING LETTER
Dr. Welborn G. 	Freeman. 	Jr. v. Oakland Education Association
Unfair Practice Charge No. 	SF-CO-454
Dear Mr. Freeman:
The above-referenced unfair practice charge, 	filed on November
19, 	1993, 	alleges that the Oakland Education Association
(Association) 	failed to fairly represent him with regard to a
transfer and the elimination of an annuity. 	This 	conduct 	is
alleged to violate Government Code section 3543.6 	of 	the
Educational Employment Relations Act 	(EERA).
Investigation of the charge revealed the following. 	The
Association is the exclusive representative of a bargaining unit
composed of 	certificated employees 	of 	the Oakland Unified School
District 	(District). 	Dr. Welborn G. Freeman, Jr. 	is employed as
a teacher in the District. 	He posseses a California Standard
Teaching Credential 	to teach the major subjects of social science
and history and the minor subject of business education. 	Prior
to 1989, 	he taught at Montera Junior High School, 	a school
located in a 	"hills" area of Oakland. 	Purportedly because of
projected declining enrollment at Montera, 	there was a need to
consolidate one teaching position for the 1989-90 	school year.
The Montera principal 	reported to Freeman that the school 	did not
have a history assignment 	for the coming year and therefore his
position was consolidated. 	After a review of Freeman's 	teaching
credential, 	the programmatic needs of Montera, 	and staff
credentials, 	the District consolidated Freeman's position. 	He
was 	subsequently transferred to Calvin Simmons Junior High
School, 	a school with predominantly low-seniority teachers and
low achieving students, 	located in the "flat-lands" area, 	which
has a high crime rate. 	Sometime in 1989, 	he filed a grievance
with the Association as his representative to challenge the
consolidation. 	The charge does not state on what language in the
collective bargaining agreement he based his claims.
In August 1991, 	Freeman wrote a letter to the Association's
representative, Ward Roundtree, 	thanking him for handling his
grievance and asking 	for the 	findings when they become available.
( --
\

Warning 	Letter
SF-CO-454
January 28, 	1994
Page 2
Under a provision of 	the collective bargaining agreement 	cited by
Freeman in a letter to Roundtree, 	dated September 10, 	1992,
teachers 	transferred by consolidation have the option of
returning to the school 	from which they were transferred if an
equivalent position for which the teacher is qualified and
credentialed becomes available. 	Freeman stated in the letter
that a White 	female teacher without 	tenure and with less
seniority was teaching the same classes as Freeman. 	He demanded
that Roundtree review his pending grievance and asked how long it
would remain pending.
The charge contains a photocopy of a certified mail 	receipt 	for a
letter addressed to Roundtree in March 1993, 	but there is no
indication of the contents of this letter.
Freeman, 	who is black, 	asserts that since September 1993, 	the
Association has 	systematically practiced race and age
discrimination. 	Teachers with high seniority and white 	teachers
with the same seniority as 	Freeman are allowed to teach in the
"hills" 	schools. 	This is alleged to violate the Association's
"affirmative action contract."
The charge alleges 	that 	the Association negotiated with the
District to eliminate an annuity for teachers, 	which continues
for the administrative staff. 	The teachers on staff had the 7.5%
annuity contribution transferred to a salary increase, 	which is
subject to income taxation. 	New teachers simply received a 7.5%
increase and therefore" did not suffer the same adverse tax
impact.
All of the above-described conduct 	is alleged to violate the
Equal Protection clause of the 14th Amendment, 	the 1964 Civil
Rights Act, 	and the Unruh Civil Rights Act.
The charge alleges 	that Association representative Marilyn
Jamerson engaged in a reprisal against 	Freeman by publicly
humiliating him as a result 	of 	tampering with voting results
during a Faculty Advisory Committee. 	In October 1993, 	Freeman
was 	the only teacher not given a calculator needed for student
testing. 	At an unidentified time, 	Freeman alleges that the
Association failed to respond to a request by him to file a
grievance.
Based on the facts stated above, 	the charge as presently written
fails to state a prima facie violation of the EERA for the
reasons that follow.
In order to state a prima facie violation regarding lack of
grievance representation, 	the Charging Party must show that the
1/

Warning 	Letter
SF-CO-454
January 28, 	1994
Page 3
Association refused to process a meritorious grievance 	for
arbitrary, 	discriminatory, 	or bad faith reasons. 	In United
Teachers of Los Angeles 	(Collins) 	(1983) 	PERB Dec. No. 258), the
Public Employment Relations Board 	(PERB) 	stated:
Absent bad faith, 	discrimination, 	or
arbitrary conduct, 	mere negligence or poor
judgment 	in handling a grievance does not
constitute a breach of the union's duty.
[Citations.]
A union may exercise 	its discretion to
determine how far to pursue a grievance in
the employee's behalf as long as it does not
arbitrarily ignore a meritorious grievance or
process a grievance in a perfunctory fashion.
A union is also not required to process an
employee's grievance if the chances for
success are minimal.
It has also been stated that 	in order to state a prima facie case
of arbitrary conduct violating the duty of fair representation, 	a
charging party:
" . . . 	must at a minimum include an assertion
of sufficient 	facts 	from which it becomes
apparent how or in what manner the exclusive
representative's action or inaction was
without a rational basis or devoid of honest
judgment. 	(Emphasis added.)" 	(Reed District
Teachers Association. 	CTA/NEA (Reyes) 	(1983)
PERB Dec. No. 332, p. 9, citing Rocklin
Teachers 	Professional Association 	(Romero)
(1980) PERB Dec. No. 124.)
The charge fails to allege sufficient 	facts from which it can be
concluded that a prima 	facie violation occurred under the
standards articulated above. 	There is insufficient evidence to
demonstrate that 	the Association failed to pursue a meritorious
grievance, 	or if it did, 	that it did so for arbitrary,
discriminatory, 	or bad faith reasons. 	The charge should contain
the language of the contract alleged to have been violated in
order to establish that 	the grievance potentially had merit.
Although there are allegations of discrimination based on age and
race, 	the charge fails to articulate how such motivations
actually played a role 	in the Association's handling of his
grievance. 	The mere fact that the District assigns younger,
white teachers to 	"hills" 	school does not establish that the
Association has been a participant in these actions, 	and without
(

Warning 	Letter
SF-CO-454
January 28, 	1994
Page 4
more, 	does not demonstrate that the Association supports the
policy by failing to enforce the contract with regard to civil
rights obligations. 	The allegation that the Association's
conduct violates the 14th Amendment and civil rights statutes 	is
not within PERB's 	jurisdiction and the Association has no duty to
enforce such provisions, 	unless they or parallel provisions are
contained in the collective bargaining agreement. 	(Oxnard School
District 	(1988) 	PERB Dec. No. 	664; 	California Faculty Association
(Pomerantsev) 	(1989) PERB Dec. No. 698-H.)
The allegations 	regarding the 	consolidation and/or transfer
grievance also appear to be untimely. 	In order to be timely
filed, 	a charge must be filed within six months of the conduct
alleged to constitute the unfair practice. 	The statute of
limitations period commences 	to run when the charging party knew
or should have known of the conduct giving rise to the alleged
unfair practice charge. 	(Regents of the University of California
(1983) 	PERB Dec. No. 	359-H.) 	The last correspondence noted in
the charge with respect to this grievance(s) 	took place in March
1993. 	But only conduct after May 19, 	1993 may be considered.
The issue of 	the Association negotiating to convert the annuity
to a salary increase involves somewhat different considerations.
PERB has held that an exclusive representative 	is accorded
considerable discretion in the negotiations process. 	In Redlands
Teachers Association (Faeth and McCarty) 	(1978) 	PERB Dec. No. 72,
PERB quoted the following language of the U.S. 	Supreme Court:
Any, authority to negotiate derives its
principal 	strength from a delegation to the
negotiators of a discretion to make such
concessions and accept such advantages as, 	in
the light of all relevant considerations,
they believe will best serve the interests of
the parties represented. 	A major
responsibility of negotiators 	is to weigh the
relative advantages and disadvantages of
differing proposal . 	. 	. 	Inevitably,
differences arise in the manner and degree to
which the terms of any negotiated agreement
affect individual employees and classes of
employees. 	The mere existence of such
differences does not make them invalid. 	The
complete satisfaction of all who are
represented is hardly to be expected. 	A wide
range of reasonableness must be allowed a
statutory bargaining 	representative 	in
serving the unit it represents, 	subject
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Warning Letter
SF-CO-454
January 28, 	1994
Page 5
always 	to complete good faith and honesty of
purpose in the exercise of its discretion.
(Ford Motor Co. v. Huffman 	(1953) 	345 U.S.
330 	[31 LRRM 2548, 	2551].)
In Service Employees International Association 	(Kimmett) 	(1979)
PERB Dec. No. 106, PERB stated:
The duty of 	fair representation implies 	some
consideration of the views of various groups
of employees and some access for
communication of those views, 	but there is no
requirement that 	formal procedures be
established. 	(Citations omitted.)
(Id.. 	at p. 	11; 	see also American Federation
-----of State. 	County----and Municipa--l Employees- 	--.
Council 10 	(Alvarez) 	(1993) 	PERB Dec.
No. 984-H.)
In order to state a prima facie violation involving a breach of
the duty of fair representation, 	facts must be alleged in the
charge indicating how and in what manner the union acted without
a rational basis or in a way that was devoid of honest judgment.
(Reed District Teachers Association. 	CTA/NEA (Reyes) 	(19803) 	PERB
Dec. No. 	332.) 	The allegations fail to establish that the
decision to negotiate for a salary increase rather than an
annuity exceeded the Association's discretion or was devoid of
honest judgment. 	The charge does not establish when the
agreement was negotiated and therefore does not establish that
the alleged violation is timely.
Finally, 	the allegations under the heading of reprisals fail to
contain sufficient details 	to enable the undersigned to determine
if a prima facie violation has been stated under the standards
explained above and/or whether the allegations are timely. 	A
charging party's obligation is to provide a 	"clear and concise
statement of the facts and conduct alleged to constitute an
unfair practice." 	(PERB Regulation 32615(a)(5) 	[Cal. 	Code of
Regs., tit. 8, sec. 32615(a) (5)].)
For these reasons the charge, 	as presently written, 	does not
state a prima facie case. 	If there are any factual 	inaccuracies
in this letter or additional 	facts which would correct the
deficiencies explained above, 	please amend the charge. 	The
amended charge 	should be prepared on a standard PERB unfair
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C
Warning Letter
SF-CO-454
January 28, 	1994
Page 6
practice charge form, 	clearly labeled First Amended Charge,
contain all the facts and allegations you wish to make, 	and
be signed under penalty of perjury by the charging party. 	The
amended charge must be served on the respondent and the original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before February 9. 	1994, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,	Sincere~y,
DONN GINOZ	" 	'-,;i	A
Regional Attorney
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